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Cross border transfers, cross border absconding and cross border visits under mental health law – a factsheet for practitioners Introduction The Commission receives frequent calls on cross-border issues. These relate to planned transfers of patients, cross-border visits and cross-border absconding. Often professionals have difficulty accessing the correct statutory legislation and guidance detailing the information they require. This fact sheet outlines the appropriate sections of the legislation, the regulations, the code of practice and the Scottish Government guidance which relates to cross-border issues and provides links to these under the relevant section for ease of access. List of relevant legislation and regulations 1. Mental Health (Care and Treatment) (Scotland) Act 2003-‘the 2003 Act’ http://www.legislation.gov.uk/asp/2003/13/contents 2. Criminal Procedure (Scotland) Act 1995-‘the 1995 Act’ http://www.legislation.gov.uk/ukpga/1995/46/contents 3. Adult Support and Protection (Scotland) Act 2007 http://www.legislation.gov.uk/asp/2007/10/contents 4. Mental Health Act 2007 (England and Wales) http://www.legislation.gov.uk/ukpga/2007/12/contents 5. Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 Scottish Statutory Instrument 2005 No. 2078 http://www.opsi.gov.uk/si/si2005/20052078.htm 6. Mental Health (Care and Treatment)(Scotland) Act 2003 Code of Practice Volume 1 pp190-203 http://www.scotland.gov.uk/Publications/2005/08/29100428/04289 7. Mental Health (Cross-border Transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005 Scottish Statutory Instrument 2005 No. 467 http://www.opsi.gov.uk/legislation/scotland/ssi2005/20050467.htm 8. Scottish Government Mental Health (Cross-border Transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005 NHS HDL (2005) 43 http://www.sehd.scot.nhs.uk/mels/HDL2005_43.pdf 9. Mental Health (England and Wales Cross-border Transfer: patient subject toother than detention) (Scotland) Regulations 2008 Scottish Statutory Instrument 2008 No. 356 http://www.opsi.gov.uk/legislation/scotland/ssi2008/ssi_20080356_en_1 10. Scottish Statutory Instrument 2005 No. 463 Mental Health (Absconding by mentally disordered offenders) (Scotland) Regulations 2005 http://www.opsi.gov.uk/legislation/scotland/ssi2005/20050463.htm 11. Mental Health (Absconding Patients from Other Jurisdictions) (Scotland) Regulations 2008 Scottish Statutory Instrument 2008 No. 333 http://www.legislation.gov.uk/ssi/2008/333/made 12. Mental Health (Cross-border Visits) (Scotland) Regulations 2008 Scottish Statutory Instrument 2008 No. 181 http://www.legislation.gov.uk/ssi/2008/181/contents/made Cross-border transfers Who is covered? The Mental Health (Care and Treatment) (Scotland) Act 2003 provides the legislative framework for: the transfer in and out of Scotland of patients subject to detention to other parts of the UK and the transfer out of Scotland to countries beyond the UK the transfer in and out of Scotland of patients subject to requirements other than detention to other parts of the UK the transfer of informal patients from Scotland to outwith the UK Patients subject to detention in hospital The relevant section of the 2003 Act covering these transfers is Section 290. http://www.opsi.gov.uk/legislation/scotland/acts2003/asp_20030013_en_1 In addition the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 SSI 2005 No. 2078 (S.9 ) covers the interaction with the law of all UK jurisdictions and makes provision consequential to the law of England, Wales and Northern Ireland in respect of the reception and removal of Scottish patients. http://www.opsi.gov.uk/si/si2005/20052078.htm The regulations which cover the transfer of patients subject to detention in hospital are Scottish Statutory Instrument 2005 No.467 - The Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005. These clearly detail the process for arranging transfers. http://www.opsi.gov.uk/legislation/scotland/ssi2005/20050467.htm Part 1 of these regulations outlines who is covered by the regulations (those subject to detention in hospital, which includes those on suspension of detention and on conditional discharge) It outlines those who are excluded by the regulations (those on the following provisions under criminal procedure legislation: assessment orders, treatment orders, interim compulsion orders, temporary compulsion orders or those remanded for inquiry under S 200(2) (b) of 1995 CPSA Act). A reciprocal exclusion from transfer applies to people under equivalent orders in the rest of the UK coming to Scotland Part 2 of these regulations set out in detail the steps professionals should take in planning and executing the removal from Scotland of restricted and non-restricted patients to another part of the UK or elsewhere and the removal of informal patients outwith the UK. It covers the roles and responsibilities of Scottish Ministers and the professionals concerned,the patient’s right of appeal, the powers of escorts andabsconding during transfer. Part 3 of these regulations sets out the same in relation to patients who are subject to detention measures being received into Scotland, which includes those on conditional discharge. The Health Dept of the Scottish Government in NHS HDL (2005)43 sets out in detail the correct procedures to follow to get authorisation from the Scottish Ministers for such transfers. Transfers without this authorisation are not valid. Please note that the phone numbers at the end of NHS HDL (2005) 43 have changed and are as follows:- Non-restricted patients 0131 244 5668 Restricted patients (Surnames A-Go) 0131 244 2170 Restricted patients (Surnames Gr-Ma-including Mac and Mc) 0131 244 6929 Restricted patients (Surnames Me-Z) 0131 244 2545 http://www.sehd.scot.nhs.uk/mels/HDL2005_43.pdf The relevant forms can be found on the Scottish Government website. http://www.scotland.gov.uk/Topics/Health/Services/Mental-Health/Law/Forms TX1a Application to Transfer a Patient to a Hospital outside Scotland TX1b Request for the Transfer of a Patient into Scotland TX4 Appeal Against Cross-border Transfer TX5 Review of a Patient following Cross-border Transfer into Scotland When patients are transferred out of Scotland, STDC and CTO revocation forms (REV 1 and 2 respectively) should be completed. Patients transferred to and from Scotland will be subject to the nearest equivalent measure that applied before their removal. Expiry dates of orders For people coming into Scotland, the expiry dates of any measures to which the patient is subject remain the same as if they had not been removed. It is important to ensure that, where necessary, there is sufficient time for application for a new order to be made for the transferred patient where their current order is approaching its expiry date. Scottish Ministers would normally require a minimum of 10 days and, where possible, 14 dates left before the expiry dates of the patient’s existing compulsory order in order to allow for this. With regard to safeguarded treatments under part 16, our interpretation is that the period of two months referred to in “treatments given over a period of time” (s240) starts when the person is received into Scotland – an earlier DMP opinion would not be legally valid. It would be best practice to ask for a local second opinion at the earliest opportunity where someone has been on medication for some time. Subsequently a DMP opinion should be requested approaching the two month period following transfer. For people transferred out of Scotland to England or Wales (or N. Ireland, Isle of Man or Channel Isles), the order will be deemed to have started on the day of transfer. See section 80B (2) of the Mental Health Act 1983: http://www.legislation.gov.uk/ukpga/1983/20/contents Named Person- right of appeal against transfer of patient subject to detention In the regulations SSI 2005 No 467 (Regulation 13) it is only the patient that can appeal against transfer and the MHTS is unable to accept an appeal from the named person. This may be a drafting error, since we cannot identify any policy reason to bar the named person from appealing, given that the named person can appeal against a transfer between Scottish hospitals. If the named person wishes to appeal, they can contact us and we will make a reference to the tribunal as per regulation 17. We would normally do this, given the apparent gap in the legislation. The timescale for this is tight as it must be done within 7 days. http://www.legislation.gov.uk/ssi/2005/467/contents/made Patients subject to suspension of detention We advise against suspending detention with the requirement to stay at an address in England, pending application to vary the order. While the Act appears to allow this, there is no agreed mechanism for transferring the conditions of a suspended hospital CTO from Scotland to England. Where someone is on suspension of detention and is moving on a permanent or semi-permanent basis to another part of the UK, we would advise that, to avoid complications, it is more appropriate to either: a) make a hospital transfer to the new hospital OR b) vary the order to a community based one and then transfer it Patients subject to requirements other than detention Section 289 of the 2003 Act sets out the power to make regulations covering transfers of people subject to community based compulsory treatment. The regulations which cover the transfer to and from England and Wales of patients who are subject to requirements other than detention are Scottish Statutory Instrument 2008 No 356 The Mental Health (England and Wales Cross-border transfer: patients subject to requirements other than detention)(Scotland) Regulations 2008. These were drawn up in response to the Mental Health Act 2007 for England and Wales, which introduced Community Treatment Orders.
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